1. INTRODUCTION Several months ago, the League legal intern Kara Ueda asked me to prepare this paper on a topic described as the “legal underpinnings of home rule and other aspects of preserving local control.” I welcomed the assignment because it presented an opportunity to look back over twenty five years advising local government in the context of a core issue of our practice. The following pages reflect on representative problems of local control with emphasis on problems that I have handled. As I look through the years, it seems clear that power is becoming more and more centralized at the regional, state and federal level. It is difficult to assert the need for “local control” as our society grows in complexity, boundaries between our communities merge in a continuous span of urban development, and the electronic age changes the way we communicate and do business. Consequently, the paper I have written does not address ways to preserve local control. I think we need to recognize and accept the limits on local control if we are going to be effective counselors to the cities we represent. 2. LEGAL AUTHORITY OF CITIES If we start with the basic legal standard that governs local action, Article 11, section 7 of our constitution promises that "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Article 11, section 5 gives charter cities plenary power over municipal affairs. Pursuant to these sections, California cities have broader local powers than the powers of cities in some other jurisdictions. The broad grant of power under the California state constitution contrasts with many other states who adhere to "Dillon's Rule" of strict construction concerning the legislative powers of local governing bodies. Dillon's Rule provides that local governing bodies have only those powers that are expressly granted, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. Thus, California cities start from a position of much greater power than the cities of Rhode Island, Virginia or other jurisdictions that still follow Dillon's Rule. Theoretically at least, local governments have power to adopt ordinances that promote and protect the public health, safety and general welfare. These are the kinds of regulations that we think of as "police power" regulations, the authority of local government to pass ordinances that regulate matters within the boundaries of a local jurisdiction. 1 3. LEGAL STANDARDS GOVERNING LOCAL ENACTMENTS: 3.1 General Background In general, a California city has authority to adopt local ordinances so long as there is no express or implied preemption under state law. A detailed analysis of the standards for local preemption is beyond the scope of this paper. However, I refer the reader to Sherwin-Williams Company v. City of Los Angeles (1993) 4 Cal.4th 893, for a relatively recent and detailed analysis by our state supreme court when it upheld Los Angeles’ anti graffiti ordinance requiring sales of spray paint.1 In general, if otherwise valid local legislation conflicts with state law, it is preempted and is void. Local regulation can also be preempted by federal regulation. A conflict exists when local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. 3.2 Express Preemption One example where the legislature has expressly stated its intent to fully occupy the field is found in Business & Professions Code section 22435.7(a), a section regulating shopping carts of the type found at supermarkets and other local stores. The section states “[t]he Legislature hereby finds that the retrieval by local government agencies of shopping carts specified in this section is in need of uniform statewide regulation and constitutes a matter of statewide concern that shall be governed solely by this section.” When the Legislature enacts such a declaration, any local regulation is expressly preempted by the uniform statewide standard. This particular section, adopted in 1996, was roundly criticized by League officers during the years that I represented the City Attorney’s Department on the League Board of Directors. I have a contrary opinion because I believe that cities and counties should not be enacting individual procedures and standards for impounding, returning or disposing of shopping carts. We cannot expect grocery stores with outlets in various cities to follow different procedures enacted by the different cities in which they do business. 3.3 Implied Preemption While I accept the need for uniform procedures in the grocery business, there was a time when I took a different position. In the early 80’s I successfully defended Berkeley against a claim of preemption in a case concerning another aspect of 1 In the Los Angeles case, the California Supreme Court, in an opinion authored by Justice Mosk, held that an anti-graffiti ordinance regulating the retail display of aerosol paint and broad-tipped marker pens was not preempted by state law. For a fascinating discussion of graffiti culture and practice, read the subsequent case of Sherwin Williams v. City and County of San Francisco (N.D. Cal 1994) 857 F.Supp. 1355, which upheld a similar ordinance in San Francisco. 2 supermarket regulation In Park & Shop Markets, Inc. v. City of Berkeley (1981) 116 Cal.App.3d 78, the Court of Appeal upheld Berkeley's local bottle bill. Berkeley had determined that there were significant problems with solid waste and with litter. In 1976, the Council passed an ordinance that required a deposit of not less than five cents on all beverage containers sold in Berkeley. Various markets and industry groups filed suit and by the time the case found its way to the court of appeal, I was the city attorney. The First District Court of Appeal upheld the ordinance and the California Supreme Court denied a hearing. The Court held that the ordinance was rationally related to a legitimate local interest and was not preempted by state law. In particular, the court rejected an argument that the ordinance was preempted by state law which reserves to the state the exclusive right to regulate the sale of alcoholic beverages, stating "the purpose of the ordinance is to regulate beverage containers; it does not purport to regulate the sale of alcoholic beverages." (116 Cal.App.3d at 93.) The Court’s opinion in the Park & Shop case is an interesting example of the traditional “hands off” approach to local regulation that is directed toward addressing social problems that have not been addressed by the Legislature.2 This case demonstrates the importance of local innovation as a way of overcoming vested interests that may be present in Sacramento. At the time the Park & Shop case was decided, California had no statewide bottle bill. After the Berkeley decision, the industry realized that it would probably be subject to different local ordinances enacted throughout the state. It then realized that control at the state level was probably a lesser evil, and in 1986, California was able to pass a comprehensive statewide act, The California Beverage container Recycling and Litter Reduction Act, Public Resources Code sections 14500 et seq. That Act does preempt local regulation, providing in section 14529 that “ This division is a matter of statewide interest and concern and is applicable uniformly throughout the state. Accordingly, this division occupies the whole field of regulation of recycling-related refund values, redemption payments, deposits and similar fees relating to beverage containers. No city, county or other public agency may enforce or implement any existing or new ordinance, resolution, regulation, or rule establishing recycling-related refund values.” A more recent example is California Rifle and Pistol Association, Inc. v. City of West Hollywood (1998) 66 Cal. App. 4th 1302, holding that prohibiting the sale of Saturday Night specials was not preempted by state law. 3.4 Traffic Regulation While Berkeley has been quite successful in litigating issues of local control, it did not win them all. How can any local concern be more basic than concern about 2 In contrast, one could review the case of Tabler t/a Foodarama Supermarket v. Board of Supervisors of Fairfax County (1980) 269 S.E.2d 358, decided shortly before the Berkeley case in a "Dillon's Rule" state. In the Foodarama case, the Supreme Court of Virginia gave short shrift to the local jurisdiction and held that there was no authority to enact a local bottle bill. 3 public safety, specifically preventing a city’s citizens from being run over by speeding cars careening through residential neighborhoods? Nevertheless, Berkeley was strongly rebuked by the California Supreme Court after it installed traffic diverters for just that purpose. Berkeley’s diverters were intended to channel traffic away from residential streets and onto the collector and arterial streets in the community. In 1982, the California Supreme Court scolded the city for exceeding its power over its local streets. The court relied on Vehicle Code section 21, which sets forth a Dillon's Rule type of approach to matters in the vehicle code. The section states "Except as otherwise expressly provided, the provisions of this [Vehicle] code are applicable and uniform throughout the state and in all counties and municipalities therein and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized therein." The court held that the traffic diverters were not authorized and were invalid. Why, you may ask, are the diverters still in place? Immediately after the decision, I was able to work with our local Assemblyman Tom Bates, to write a bill that was passed as emergency legislation and amended Vehicle Code section 21101 by adding paragraph (f).